Michael K. Hunter v. Massachusetts Parole Board (SPR 20241635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 14, 2024 SPR24/1635 Stacy Book Records Access Officer Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of Michael Hunter appealing the response of the Massachusetts Parole Board (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 15, 2024, Mr. Hunter requested, “[a] complete un-redacted list of all prisoners / incarcerated persons who were effected and /or parole eligible by the Mattis decision.” The Board provided a response on March 28, 2024. Unsatisfied with the Board’s response, Mr. Hunter petitioned this office and this appeal, SPR24/1635, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Stacy Book SPR24/1635 Page 2 June 14, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board’s March 28th response In its March 28, 2024 response, the Board responded and cited Exemption (a) of the Public Records Law to withhold the requested record. Current Appeal In his appeal, Mr. Hunter stated, “The response I received seems NOT to be in line with the current MA Parole Board CMR which clearly states: ‘120 CMR 500.02 (1): The Parole Board shall make available to any person, upon request, information that it has the primary responsibility for creating and maintaining regarding custody status and placement within the criminal justice system as provided in M.G.L. c. 6 § 172. This information is limited to whether a criminal offender currently: (a) is confined in a correction institution; (b) is eligible for parole on an estimated date; or ….’ If I am reading this correctly then the MA Parole Board is obligated to release the names of approximately 210 male and female prisoners / incarcerated individuals effected by the Mattis court decision.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

Stacy Book SPR24/1635 Page 3 June 14, 2024 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the Board states: Please be advised that the requested information meets the definition of “criminal offender records information” (CORI) under G. L. c. 6 § 167 where it “relates to the incarceration, rehabilitation, and release of criminal offenders”…. Section 178 of G. L. c. 6 prohibits the sharing of CORI to another individual or entity except in accordance with the provisions of section 168 through 175 of the CORI Act. The requested materials does not fall under one of the four categories of CORI made accessible to the general public under S 172(4) of the CORI Act…. The [Board] may withhold this information under the statutory exception to the public records law.

Stacy Book SPR24/1635 Page 4 June 14, 2024 Based on the Board’s response, I find it has not met its burden of specificity in claiming the CORI Act, as it operates through Exemption (a), to withhold responsive record. Specifically, it is not clear how the withheld record constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Board is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. G. L. c. 66, § 10(b)(iv). The Board must clarify. Conclusion Accordingly, the Board is ordered to provide Mr. Hunter with a response, in a manner consistent with the Public Records Law, its Regulations and this order within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Michael Hunter